Tan v King

In the matter of Tan v King, the respondent, Mr. Tan, sought to compel the applicant, Mr. King, to answer interrogatories under the self-incrimination privilege. The case was heard in the Supreme Court of New South Wales. The primary dispute revolved around the interpretation and application of sections 128 and 128A of the Evidence Act 1995 (NSW), which pertain to the self-incrimination privilege and the granting of certificates to protect witnesses from using their answers in subsequent proceedings.

The central legal issue before the court was whether the certificate that should be granted to protect the witness from using their answers in future proceedings should be under section 128 or section 128A of the Evidence Act 1995 (NSW). The court had to consider the applicability of these sections to the specific context of answers to interrogatories in aid of a freezing order and the implications of a certificate under section 128A for proceedings in the Federal Court of Australia.

The court held that the certificate under section 128A would not provide the necessary protection for the witness in Federal Court proceedings, as it would not prevent the use of the answers in that forum. Consequently, the court determined that it was more appropriate to grant a certificate under section 128 of the Evidence Act 1995 (NSW). This decision was based on the reasoning that compelling the witness to laboriously give evidence to the effect of the answers given in the interrogatories would allow them to gain the protection of the certificate under section 128, which would be effective in both state and federal courts. The court's ruling favoured the granting of a certificate under section 128 to ensure comprehensive protection for the witness in all relevant proceedings.